Present: All the Justices 

DARRELL ELMO DAVIS 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 950757 January 12, 1996 

LEONARD C. MULLINS, ET AL. 

FROM THE CIRCUIT COURT OF DICKENSON COUNTY 

Donald R. Mullins, Judge 

 This dispute over the boundary line of adjoining parcels of 

land in Dickenson County has lingered in the courts of the 

Commonwealth for more than a quarter of a century. To fully 

understand this case, a recitation of the history of this 

protracted litigation is necessary. The various pleadings and 

trial court orders in the record provide the factual background of 

this appeal. Neither a statement of facts nor transcripts of the 

various proceedings have been filed by the parties. 

 The original parties to the dispute were appellees Leonard C. 

and Pauline Mullins (collectively, the Mullins) and Faye Davis. 

Faye Davis is the mother and predecessor in interest of appellant 

Darrell Elmo Davis (Davis). On April 29, 1969, the Mullins filed 

a motion for judgment pursuant to Code § 8-836 (now Code § 8.01-

179) to establish the boundary line between their land and the 

adjoining land owned by Faye Davis. On July 10, 1969, Faye Davis 

responded by filing a combined demurrer, motion for bill of 

particulars, and grounds of defense. 

 On November 15, 1971, the trial judge at that time,1 Judge 

 

 1As recounted later in the opinion, four judges of the Circuit 

Court of Dickenson County ultimately presided over and entered 

orders in this litigation. The efficacy of these orders is 

critical to this appeal. 
Glyn R. Phillips, issued an opinion letter recounting the evidence 

and the view of the property he had taken with counsel. Judge 

Phillips determined that the Mullins had failed to bear their 

burden of proof to establish the boundary line and that "the wire 

fence claimed by [Faye Davis] . . . is the true boundary line 

between [the parcels in question]." Although the opinion letter 

concluded with the provision that "[a]n appropriate order may be 

drafted in accordance with this opinion and presented to the Court 

for entry," no draft of an order appears in the record of the 

trial court. Apparently, such an order was never presented to the 

trial court. In any event, this inexplicable gap in the record is 

but one of many. 

 Notwithstanding the November 15, 1971 opinion letter facially 

resolving the dispute, the next item in the trial court record is 

a brief filed by the Mullins in support of their motion for 

judgment. The certificate on this brief indicates that it was 

mailed to counsel for Faye Davis on November 30, 1971. There is 

no indication of when it was received by the trial court. 

 Thereafter, the record is silent until October 19, 1976, when 

the trial court appointed a surveyor to prepare a survey of the 

boundary line. On February 17, 1978, the Mullins filed a motion 

to have evidence taken concerning the survey. That motion was 

granted and Davis was added as a party to the proceedings by order 

entered on April 3, 1978. By that order, the trial court also 

referred the matter to a "Special Commissioner in Chancery" to 

consider the evidence and submit a recommended decision to the 

court. 
 The commissioner filed his report on May 15, 1980. The 

report, in extensive detail, recounted the history of the parcels 

from the time of their creation in a grant dividing a single tract 

of land. The commissioner concluded that the Mullins had failed 

to satisfy their burden of proof to establish the boundary line 

and recommended that the trial court's decision be in favor of 

Faye and Darrell Davis. The Mullins filed exceptions to the 

commissioner's report and the issues were briefed by the parties. 

 On June 17, 1981, Judge Nicholas E. Persin, at that time the 

trial judge, issued an opinion letter holding that the report of 

the commissioner correctly determined the location of the boundary 

line and directing that a final order be prepared to that effect. 

 The record contains a notice of intent to submit a final 

"Decree" for entry on August 19, 1982 at 1:00 p.m. On that day 

Judge Persin entered an order styled as a "Final Decree" 

containing a metes and bounds description of the boundary line and 

a provision for payment of the commissioner's fee. This order was 

endorsed by counsel for Faye and Darrell Davis, and the circuit 

court clerk's attestation shows that it was recorded on August 19, 

1982 at 4:00 p.m. in deed book 271 at page 318. In addition, 

however, the order contains a marginal notation that it was 

inadvertently omitted from microfilm on August 19, 1982 and 

subsequently microfilmed on February 26, 1991 by order of the 

trial court.2 This order (hereafter the 1982 order), as will be 

 

 2The order also reflects that it was ultimately recorded in 

the trial court's order book 35 at page 352. Based upon 

subsequent events and court orders, we assume that this occurred 

in 1991 when the order was microfilmed. 
shown, became the focal point of the subsequent continuing 

litigation between the parties. 

 Apparently because the order was not endorsed by counsel for 

the Mullins and to ensure that the record reflected that counsel 

was properly advised of the circumstances of its entry, Judge 

Persin sent a letter to counsel on August 19, 1982, advising that 

the court had waited until "11:30 a.m." on that day for him to 

appear to oppose entry of the order. The letter contained the 

specific admonition that: "If you still oppose entry of the Order 

you should appear at the Clerk's office immediately and make your 

motion before the Order is filed." The Mullins' counsel responded 

on August 23, 1982 by filing a "Motion to Vacate Final Order." 

 The Mullins asserted in this motion that, although no formal 

notice had been received, counsel had been informed by telephone 

by opposing counsel that the order would be submitted in a hearing 

at 1:30 p.m. on August 19. The motion further asserted that 

counsel had in turn informed the trial judge by telephone that the 

Mullins intended to oppose entry of the order at that time, but 

that the judge had entered the order at 11:30 a.m. on August 19. 

Although a notice of an August 25, 1982 hearing on the motion to 

vacate also appears in the record, there is no indication that the 

hearing took place, nor was an order vacating or suspending the 

judgment of the 1982 order entered at that time or within 21 days 

of the entry of the judgment. 

 Approximately eight months later on April 8, 1983, Judge 

Persin entered another order styled as a "Final Decree" (hereafter 

the 1983 order) which purports to dismiss with prejudice the 
original motion for judgment on the ground that the Mullins failed 

to meet their burden of proof as to the location of the disputed 

boundary line. This order was endorsed by counsel for both 

parties. Nevertheless, the litigation over this boundary line was 

not at an end. 

 On May 9, 1989, Davis instituted a new proceeding by filing a 

bill of complaint for an injunction and damages, asserting that 

the Mullins had interfered with his use of his land by cutting the 

fence and commanding him to abandon the disputed portion of the 

property. Davis asserted that the 1982 order had established the 

boundary line between the two parcels, and that the action of the 

Mullins violated his property rights as established by that order. 

 Judge Donald R. McGlothlin, Jr. granted a temporary injunction on 

May 10, 1989. That injunction set out the metes and bounds 

description of the property that appeared in the 1982 order. 

 On May 23, 1989, the Mullins filed a motion to dismiss Davis' 

action, asserting that the 1983 order superseded the 1982 order. 

They further asserted that the 1983 order merely dismissed the 

original 1969 motion for judgment without establishing a boundary 

line between the parcels, thus providing no basis for Davis' 

claims and the injunction. 

 Subsequently the present trial judge, then presiding in the 

matter, issued a final order on July 6, 1990 granting a permanent 

injunction against interference by the Mullins with Davis' use of 

the property based upon the boundary line established by the 1982 

order. The trial judge specifically found that the 1983 order was 

a nullity because it had been entered after the court had lost 
jurisdiction to do so. The Mullins filed a notice of appeal of 

this decision, but failed to perfect that appeal. 

 Again, however, the litigation did not end with this failure 

to perfect an appeal from the July 6, 1990 order. Rather, on 

August 24, 1990, the Mullins filed a motion to reinstate the 

original proceeding arising out of their April 29, 1969 motion for 

judgment seeking an order nunc pro tunc to vacate the 1982 order. 

 Thereafter on February 18, 1992, Judge Persin ordered the matter 

reinstated and, nunc pro tunc, vacated the 1982 order in favor of 

the 1983 order. Counsel for Davis objected but did not appeal 

this decision. 

 Armed with Judge Persin's February 18, 1992 order, the 

Mullins then filed a motion dated April 3, 1992 to dissolve the 

prior injunction granted in favor of Davis on July 6, 1990. They 

asserted that "[w]ithout the requisite [1982 order], there is no 

basis for the continuation of the injunctive relief entered in 

this cause . . . ." 

 By final order entered on January 30, 1995, the present trial 

judge, specifically referencing Judge Persin's February 18, 1992 

order, determined that the 1982 order was void, the 1983 order was 

valid, and consequently there was no basis for the court's prior 

injunction entered on July 6, 1990. Accordingly, the injunction 

was dissolved. The order further directed that the record of the 

original 1969 action be made a part of the record of the 1989 

action for purposes of appeal. We awarded Davis an appeal from 

the trial court's January 30, 1995 order. 

 The crux of the issue on appeal is the validity of the 1982 
order and the power of the court to modify it by vacating it in 

1992. We must first consider whether the order was in fact valid 

despite the lack of an endorsement by the Mullins' counsel. Rule 

1:13 provided in 1982, as it does today, as follows: 

 Drafts of orders and decrees shall be endorsed by 

counsel of record, or reasonable notice of the time and 

place of presenting such drafts together with copies 

thereof shall be served by delivering or mailing to all 

counsel of record who have not endorsed them. Compliance 

with this rule . . . may be modified or dispensed with 

by the court in its discretion. 

This rule is designed to protect parties without notice. State 

Hwy. Comm'r v. Easley, 215 Va. 197, 201, 207 S.E.2d 870, 873 

(1974). However, the mere fact that an order may have been 

entered without endorsement of counsel of record does not 

automatically render it void. The last sentence of Rule 1:13 

authorizes the trial court in its discretion to modify or dispense 

with the requirement of endorsement of counsel. Thus, we have 

held that endorsement of counsel is unnecessary under 

circumstances where "counsel are present in court when the ruling 

is made orally and are fully aware of the court's decision; 

preparation and entry of an order in standard form is all that 

remains to be done to end the case in the trial court." Smith v. 

Stanaway, 242 Va. 286, 289, 410 S.E.2d 610, 612 (1991). 

 Here, the record shows that the Mullins' counsel was fully 

aware of the court's decision through its opinion letter and that 

opposing counsel had been directed to prepare an order consistent 

with that decision for entry. All that remained to be done was 

the preparation and entry of the order to end the case in the 

trial court. Moreover, counsel was aware that such an order would 
be presented for entry on August 19, and he communicated to the 

court his objection to the order the day before its entry. 

 Concededly, the time of day at which the order was to be 

presented for entry on August 19 was the subject of confusion or 

misunderstanding between counsel. Nonetheless, the record is 

clear that the trial court was aware of these circumstances and 

counsel's objection to the order. Consequently, exercising its 

discretion to dispense with the requirements of counsel's 

endorsement, the court promptly informed counsel of its action and 

provided him with an ample opportunity to make an objection. 

Indeed, counsel acted to make such objection by filing a motion to 

vacate well within the time period that the court entertained 

jurisdiction over the matter. Accordingly, under the 

circumstances of this particular case, the order was properly 

entered by the trial court. 

 Having determined that the 1982 order was valid under Rule 

1:13, we now consider the effect of counsel's motion to vacate 

that order. It is the firmly established law of this Commonwealth 

that a trial court speaks only through its written orders. 

Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). 

 Furthermore, "orders speak as of the day they were entered," 

Vick v. Commonwealth, 201 Va. 474, 476, 111 S.E.2d 824, 826 

(1960), and an order of the court becomes final 21 days after its 

entry unless vacated or suspended by the court during that time. 

Rule 1:1. 

 Neither the filing of post-trial or post-judgment 

motions, nor the court's taking such motions under 

consideration, nor the pendency of such motions on the 

twenty-first day after final judgment is sufficient to 
toll or extend the running of the 21-day period 

prescribed by Rule 1:1 . . . . The running of time under 

[Rule 1:1] may be interrupted only by the entry, within 

the 21-day period after final judgment, of an order 

suspending or vacating the final order. 

School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 

550, 556, 379 S.E.2d 319, 323 (1989) (citations omitted). 

 No order suspending or vacating the 1982 order within 21 days 

of its entry appears in the record. Accordingly, that order 

became final on September 9, 1982. After that date, the trial 

court, pursuant to Rule 1:1, was divested of jurisdiction and 

every action of the court thereafter to alter or vacate that 

order, including the entry of the 1983 order, was a nullity unless 

one of the limited exceptions to the preclusive effect of Rule 1:1 

applies. 

 One such exception is provided by Code § 8.01-428(B) which 

permits the trial court to correct at any time "[c]lerical 

mistakes in all judgments or other parts of the record and errors 

therein arising from oversight or from an inadvertent omission." 

Code § 8.01-428(B); see also Lamb v. Commonwealth, 222 Va. 161, 

165, 279 S.E.2d 389, 392 (1981). In addition, in Council v. 

Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248 (1956), we 

adopted the majority view that the trial court has the inherent 

power, independent of statutory authority, to correct errors in 

the record so as to cause its acts and proceedings to be set forth 

correctly. In short, the court has the inherent power, 

independent of the statute, upon any competent evidence, to make 

the record "speak the truth." Netzer v. Reynolds, 231 Va. 444, 

449, 345 S.E.2d 291, 294 (1986). 
 When acting nunc pro tunc, the court does not reacquire 

jurisdiction over the case. See Dixon v. Pugh, 244 Va. 539, 543, 

423 S.E.2d 169, 171 (1992). Rather, the trial court merely 

corrects the record by entry of an order nunc pro tunc, under the 

accepted fiction that the order relates back to the date of the 

original action of the court "now for then." Nonetheless, we have 

carefully noted that "[t]he power to amend should not be 

confounded with the power to create. While the power is inherent 

in the court, it is restricted to placing upon the record evidence 

of judicial action which has actually been taken, and presupposes 

action taken at the proper time." Council, 198 Va. at 292, 94 

S.E.2d at 248 (citation omitted). Similarly, the statutory power 

granted by Code § 8.01-428 is to be narrowly construed and 

applied. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 

243, 247, 360 S.E.2d 845, 848 (1987). 

 To permit a trial court, either under the statute or by its 

inherent power, to consider at any time what judgment it might 

have rendered while it still retained jurisdiction over a case and 

then to enter that judgment nunc pro tunc would render meaningless 

the mandate of Rule 1:1 and would do great harm to the certainty 

and stability that the finality of judgments brings. Thus, 

without competent evidence that the trial court actually attempted 

timely to vacate the 1982 order and failed to do so only by error, 

oversight or omission, the finality of that order could not be 

vacated nunc pro tunc. 

 Here, the record does not contain an order vacating the 1982 

order within 21 days of its entry and is devoid of competent 
evidence that the trial court attempted to enter such an order 

while it retained jurisdiction over the matter. Similarly, the 

record is devoid of competent evidence that the Mullins timely 

pursued the entry of an order, pursuant to their motion, to vacate 

the 1982 order. While the delay in recording that order and the 

subsequent proceeding before the trial court in 1983 may suggest 

that the parties and the court treated the 1982 order as having 

been vacated, nothing in the record suggests that an order doing 

so was in fact entered. Accordingly, the 1983 order was a 

nullity, and the February 18, 1992 order was issued in error, the 

court having no authority to enter the latter order nunc pro tunc. 

 As a result, the January 30, 1995 order dissolving the injunction 

on the basis of the February 18, 1992 order was also issued in 

error, as the July 6, 1990 injunction to enforce the provision of 

the 1982 order was properly granted. 

 In summary, we hold that the 1982 order remains valid and 

established the boundary line between the parties' property, and 

Davis is entitled to the protection of the July 6, 1990 injunction 

enforcing the effect of the 1982 order. Thus we will reverse the 

trial court's January 30, 1995 decree, reinstate the injunction, 

and enter final judgment in favor of Davis. 

Reversed and final judgment.